100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

Michael J. Graetz

112 Yale L.J. 261 (2002)

We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy.

But the coming decade, with its paint-by-numbers phase-ins and phase-outs of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire Act in 2011, makes this a propitious time to take a hard look at the nation's tax system. Describing the nation's current federal tax system in anything other than tentative and uncertain terms is impossible. Even the most sophisticated tax lawyer cannot be sure what the current statute means for the future. Should we, for example, believe that more than thirty-five million taxpayers--nearly one-third of all individual filers--will be subject to the alternative minimum tax (AMT), as the current law implies? Or should we instead be confident that some future Congress will avert that train wreck? The 2001 Act repeals the estate tax only for the year 2010. That is why Paul Krugman described that year as an auspicious time to throw Momma from the train --at least if she is rich. But has the estate tax really been repealed?

There will be four congressional and two presidential elections before the 2001 Act sunsets in 2011. Absent constitutional amendment, President Bush cannot serve past January 2009. Congress has enacted nearly one hundred different laws amending the tax code in the past fifteen years. The structure of the 2001 Act makes congressional reexamination of the nation's tax law inevitable. People with an abiding interest in the nation's tax policy should treat the 2001 Act's sunset in 2011--its "Ax-the-Act" provision--as a unique opportunity to debate what kind of tax law should govern the nation in the twenty-first century. We need to be prepared when a tax reform opportunity knocks. We have no stable status quo.

Nor has it been easy to embrace the status quo for quite a long time. No politician spearheaded a "Save the Code" movement in opposition to Republicans' recent efforts to "scrap the code" by terminating it a decade hence. But if we cannot admire the tax law we have, what should we wish for? In this Essay, I offer observations about the nation's current tax law and my recommendations for change.